D. C.]

Opinion of the Court.

The general rule, as repeatedly stated by the Federal courts, is "that an amendment to a petition which sets up no new cause of action, but merely amplifies and gives greater precision to the allegations in support of the cause of action originally presented, relates back to the commencement of the action." Crotty v. Chicago G. W. R. Co. 95 C. C. A. 91, 169 Fed. 593, and cases cited. In First State Bank v. Haswell, 98 C. C. A. 217, 174 Fed. 209, the court, referring to this rule, said: "This rule is also applicable to cases where jurisdictional facts which existed at the time the original petition was filed are subsequently made to appear for the first time by an amendment." In Ryan v. Hendricks, 92 C. C. A. 78, 166 Fed. 94, the court, applying the rule to a bankruptcy case, said: "The amendments related to the number of the petitioning creditors and the amount and nature of their claims, and to the occupation of the debtor. There is no doubt that at the time the original petition was filed Longerman was a bankrupt, and all the conditions existed which made it proper for his estate to be administered under the bankruptcy law. If the original petition failed to set forth these conditions fully and clearly, the court did right in allowing the amendments, and the amendments, when made, related back to the time of the filing of the original petition, and had the same effect as if originally incorporated therein." Where large property rights are liable to be involved in the priority of liens and the rights of judgment creditors attaching within four months of the commencement of the bankruptcy proceedings, it might be assumed that a strict rule of pleading would be invoked; but on the contrary a very liberal and sensible rule has been adopted.

Conceding, as we must, that the averment setting forth the beneficiaries is one of the ingredients necessary to state a cause of action in a suit for the wrongful and negligent killing of a person, it is, nevertheless, but one of the elements, and does not, of itself, constitute the cause of action or a separate cause of action. The averment is essential, together with other allegations of the petition, to state a proper cause of action. Its omission merely results in stating a defective cause of action, which

Opinion of the Court.

[37 App. may be cured by an amendment, which will relate back in point of time to the filing of the original petition. Love v. Southern R. Co. 108 Tenn. 104, 55 L.R.A. 471, 65 S. W. 475; Geroux v. Graves, 62 Vt. 280, 19 Atl. 987; Burlington & M. R. Co. v. Crockett, 17 Neb. 570, 24 N. W. 219; Walker v. Lake Shore & M. S. R. Co. 104 Mich. 606, 62 N. W. 1032.

Counsel for appellee has cited many cases where it has been held that a petition which does not name the beneficiaries in an action based upon a statute similar to ours is so defective that it will not support a verdict; but that does not argue that the defect may not be cured by amendment before verdict and judg ment. On the other hand, the courts of a number of States whose decisions are entitled to the highest respect support appellee's contention that a petition so amended states a new cause of action. The question is one involved in difficulty, but we are constrained to adopt the liberal rule. Indeed, this court has established a liberal rule as to the right of amendment, in order that the ends of justice may be attained. Steven v. Saunders, 34 App. D. C. 321.

In District of Columbia v. Frazer, 21 App. D. C. 154, an amended declaration was filed after the bar of the statute of limitations had run, dismissing a codefendant, omitting acts of negligence originally alleged, and charging new and different acts of negligence. The court, sustaining the right of amendment, said: "Where, as in this case, there has been a substitution of the original declaration by an amendment, the test is whether the cause of action remains the same in substance, notwithstanding differences of specification. Howard v. Chesapeake & O. R. Co. 11 App. D. C. 330, 336; Texas & P. R. Co. v. Cox, 145 U. S. 593, 604, 36 L. ed. 829, 833, 12 Sup. Ct. Rep. 905. Applying this test, we are of opinion that there was no error in overruling the plea of limitation. The foundation of the action in both pleadings is the negligence of the defendant in the performance of its duty to keep its sidewalks in a safe condition." So here, the foundation of the action in both the original and amended petitions is the negligent shooting of appellant's intestate by the appellee.

In the recent case of Texas & N. O. R. Co. v. Miller, 221 U. S. 408, 55 L. ed. 789, 31 Sup. Ct. Rep. 534, suit was brought in Texas to recover damages for a death caused by the alleged negligence of the railroad company in Louisiana. The Louisiana statute, like ours, required the action to be brought within one year. The courts of Texas, under the prevailing rule in the State, refuse to take judicial cognizance of the statutes of other States, unless pleaded. The petition was filed within the year, but failed to set out the Louisiana statute under which the suit was brought. After the year had expired the defendant company answered, setting up the statute. The Texas court held that the answer cured the defect in the petition, which holding was affirmed by the Supreme Court. If a defect so vital as the failure to plead a statute upon which the cause of action is based could be cured by answer, it must follow logically that it could have been cured by amendment. There, the statute of Louisiana was required to be pleaded as a condition precedent to recovery. Here, the beneficiaries under the statute must be named in the declaration as a condition of recovery.

The original judiciary act, 1 Stat. at L. 91, chap. 20, U. S. Comp. Stat. 1901, p. 696, provides that no proceeding in civil cases in any court of the United States "shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect or want of form, except those which, in cases of demurrer, the party demurring specially sets down together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its. discretion and by its rules, prescribe." From this it will be observed that in the establishment of the Federal courts a most. liberal rule of pleading was enjoined by statute. It should not be the policy of the courts to defeat justice by indulging in mere technicalities and fine-spun theories of pleading. Where

an amendment does not operate totally to confer jurisdiction, or to change the cause of action or shift the right of action, but merely supplies an additional element essential to a proper statement of a cause of action defectively stated, or an additional jurisdictional averment essential to clothe the court with complete power to conduct the suit to a legal conclusion, it should be allowed.

The judgment is reversed, with costs, and remanded for further proceedings. Reversed.

PIERCE v. UNITED STATES.

APPEAL AND ERROR; CONTEMPT OF COURT; CRIMINAL LAW.

1. An appeal by the accused lies to this court from an order of the supreme court of the District of Columbia adjudging him guilty of contempt of court, and sentencing him to imprisonment for attempting corruptly to influence a member of the grand jury, which proceeding was commenced by attachment, requiring the accused to show cause why he should not be so adjudged in contempt. (Construing sec. 226, D. C. Code [31 Stat. at L. 1225, chap. 854.])

2. A proceeding in the lower court, sitting as a criminal court, instituted by attachment, requiring a person not a party to an action to show cause why he should not be adjudged guilty of contempt of court for attempting to corruptly influence a grand juryman, is an action at law, and an appeal by the accused from an order adjudging him in contempt must be on a bill of exceptions; and on such an appeal this court cannot review the action of the trial court upon questions of fact, but only upon questions of law. (Following Gompers v. Buck's Stove & Range Co. 33 App. D. C. 516, s. c. 221 U. S. 418, 55 L. ed. 797, 34 L.R.A. (N.S.) 874, 31 Sup. Ct. Rep. 492.

.

3. An attempt to corruptly influence a grand juryman is a contempt of court, within the meaning of sec. 725, Rev. Stat. U. S. Comp. Stat. 1901, p. 583, although the offense was committed at the place of business of the juryman in a part of the city distant from the courthouse. (Following McCaully v. United States, 25 App. D. C. 404.)

4. A person charged with contempt of court for attempting to corruptly influence a grand juryman cannot purge himself of contempt so as to require the court to discharge him, by denying under oath the charge made. (Construing sec. 725, Rev. Stat.)

5. Where the court below sentenced a person to three months' imprisonment in jail for contempt of court for attempting to corruptly influence n grand juryman, this court, on an appeal from the order of that court, stated that it did not regard the penalty imposed as extreme or unusual, but held that, even if it did, that it was not within its jurisdiction to modify the sentence.

6. An application to this court for a writ of error to the Supreme Court of the United States will not be granted where the judgment of this court affirms an order of the lower court, holding a criminal term, adjudg ing a person not a party to a cause guilty of contempt of court, under sec. 725, Rev. Stat., for attempting to corruptly influence a member of the grand jury; as a proceeding under that section is in the nature of a criminal proceeding, and by sec. 250 of the act of Congress of March 3, 1911 (36 Stat. at L. 1159, chap. 231), to "Codify, Revise, and Amend the Laws Relating to the Judiciary," the judgments of this court in all cases arising under the criminal laws are made final.

No. 2318. Submitted November 9, 1911. Decided December 4, 1911. Application for writ of error from Supreme Court of the United States denied January 9, 1912.

HEARING on an appeal by the accused from an order of the Supreme Court of the District of Columbia in a proceeding instituted by attachment, adjudging him guilty of contempt of court for attempting to corruptly influence a grand juryman, and sentencing him to imprisonment for three months in jail. Affirmed.

The facts are stated in the opinion.

Mr. A. S. Worthington for the appellant.

Mr. C. R. Wilson, United States District Attorney, and Mr. R. S. Huidekoper, Assistant, for the appellee.

Mr. Justice VAN ORSDEL delivered the opinion of the Court: It is charged in the complaint filed in the criminal division of the supreme court of the District of Columbia, that appel